Sunshine Sunday: Open records act under fire as large requests tax system

Lisa Anderson, a Public Disclosure Assistant in the Tacoma City Clerk's office, works on a search of city records to fulfill a request in February. Peter Haleyphaley@thenewstribune.com

Lisa Anderson, a Public Disclosure Assistant in the Tacoma City Clerk's office, works on a search of city records to fulfill a request in February. Peter Haleyphaley@thenewstribune.com

At 44 years old, the Public Records Act is firmly in midlife, and some legislators say the law is showing its age.

Much has changed, they say — and the Public Records Act must, too. Modern technology and communication methods require workers to create records constantly: emails, databases, even text messages.

Fielding requests for those records has become a burdensome task that never ends, legislators argue. Adjustments to the law would help struggling local governments address voluminous, vexing requests from so-called “serial filers,” without hindering transparency, they say.

Hogwash, open government advocates say. The people pay for the government with their tax dollars — including the shiny tech toys that were supposed to simplify and streamline the duties of record-keeping. The public’s right to know what the government is doing remains essential.

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“Full access to information,” as the authors of the Act wrote, is a “fundamental and necessary precondition to the sound governance of a free society.”

The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.

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The records act too old? No, say its backers. It’s flexible enough as it is to meet the needs of governments and citizens, and new technology makes it easier to comply, not harder.

One need only look to the Kirkland city clerk’s office, which has managed to avoid lawsuits and satisfy requesters seeking anything from car crash reports to literally every document ever produced by city workers.

NEW BREED OF REQUESTERS

Had the latest proposal passed muster in the Legislature, local governments would have been allowed to ignore computer-generated requests, put aside requests for “all agency records,” cap the amount of time workers respond to requests, and prioritize records requests based on complexity. One of the bill’s co-sponsors, Republican Rep. Terry Nealey, said small cities in his Eastern Washington district lack the resources to cope with requests for massive stacks of records.

“A lot of these smaller entities don't even have a full FTE (full time employee) or a full time person,” he said. “They just plain do not have the personnel to respond to these large requests.”

Nealey also cited the need to curb “vengeful” requests from individuals with grudges against local agencies.

“It’s very important that we keep the Public Records Act intact and that we have full transparency,” he said. “We want to make sure that legitimate requesters continue to have the opportunity to obtain records. What we’re trying to do is narrow this bill down, to go after those requesters who are, in my opinion, not legit.

“The law is very legit, but it became law in ‘73, when probably the most modern piece of equipment in the office was an IBM Selectric. You can push a button on a computer now and instantly request a million records.”

Since the inception of the Public Records Act — nearly three-quarters of voters approved it in 1972 — legislators have introduced dozens of bills to limit access to documents, often at the behest of cities and counties who say the cost to comply with the state law is too high. Industry also has successfully lobbied the legislature for dozens of exemptions that they say protect their business interests.

But a new breed of requesters has governments on edge.

Self-taught computer programmer Tim Clemans last year filed requests for all Seattle Police Department dispatch calls, police reports and videos. He dropped his requests after the department hired him. There, he developed software for the department, including a program that blurs potentially sensitive police video. That worked — for about six months. Clemans resigned in frustration, using a computer program to file 200 records requests with the department within hours of his departure.

He eventually withdrew his requests to nearly 40 agencies, saying the information he had already viewed was boring.

“I didn’t see anything that piqued my interest,” Clemans said in a recent interview.

While Clemans withdrew his requests out of boredom, agencies still were forced to spend time and energy responding to them. In some cases, those responses illustrated potential counters to massive requests. Last fall, the city of Seattle received more than 300 individual requests from Clemans in a six-week span. In December, the city responded to one Clemans request for “all” public records with a flat denial, saying the request did not seek “an indentifiable record.”

Clemans received a similar denial earlier in 2015 from State Attorney General Bob Ferguson’s office, which rejected a request that included around 600 million emails. The cited reason: Clemans hadn’t asked for an identifiable record.

A lobbyist with the Association of Washington Cities said the Public Records Act works best when requesters and governments work together to “be reasonable and identify specific records.”

“Our concern is there is not enough protection for those jurisdictions when you have requesters who don’t have those kind of good intentions,” said AWC lobbyist Candice Bock.

Our concern is there is not enough protection for those jurisdictions when you have requesters who don’t have those kind of good intentions.

Association of Washington Cities lobbyist Candice Bock

Clemans is one of a few examples Bock mentioned as those who vex cities with broad requests. Responding to such sweeping requests can bankrupt a small town, she added. Records clerks can make honest mistakes, but if a judge awards penalties for breaking the law, it takes away money from essential services that taxpayers expect.

“It’s those kind of requests that seem to be large enough that you are guaranteed to miss something,” Bock said. “And then they leave you open to potential liability.”

State law doesn’t say how much time or money agencies have to spend to reply to records requests, but the Act does require agencies to adopt “reasonable procedures … to prevent excessive interference with other essential functions of the agency.”

Such essential functions include fire protection and police officers, and those costs are carefully budgeted for, said Toby Nixon, a Kirkland city councilman and the president of the Washington Coalition for Open Government.

“Public records is an essential service, too. It doesn’t mean it gets a bottomless bucket of money,” Nixon said. Governments “are always talking about how responding to public records requests is a fluffy, unfunded mandate. It’s something they have to do and they barely tolerate it.”

Public records is an essential service, too. It doesn’t mean it gets a bottomless bucket of money.

Toby Nixon, a Kirkland city councilman and the president of the

HOW TACOMA HANDLES IT

Staffers in the Tacoma City Clerk’s office say their job is to make sure people get the records they ask for. In 2006, the city of Tacoma received 195 records requests. Last year, people filed 1,849 requests — more than eight per workday.

The city can have around 100 open records requests on any given day, said Tacoma public disclosure assistant Lisa Anderson. Many of them are one-offs — a resident asks for a copy of a city ordinance, or a bank asks for violation records related to one of its properties.

“We still process them in order, although (for larger requests) we schedule batches to go out, so that helps with response times,” Lisa Anderson said.

When people ask for “any and all” records on a topic, it can take a while to get a response.

“Sometimes the requester will narrow it down. If they know it’s going to take a year to get through all of the emails typically they can narrow it down,” she said. “They typically know what they are looking for and they can provide details of a specific document.”

Of more than 4,700 records requests filed with the city of Tacoma since Jan. 1, 2013, Bonney Lake Resident Daniel Decker has filed 302 – more than one per business day since his first request on Jan. 5, 2015. Decker’s requests outnumber those from all journalists or any single individual over a three-year span.

Most of his requests aimed at the Tacoma Police Department. He wanted to view “the funeral cost of all dead K-9 Police Officers (the dead dogs)” as well as all veterinary bills. He wanted a list of city employees who took sexual harassment training “and still got mixed up in a sexual harassment charge.” In late June 2015, he filed a request for copies of all documents already sent to him.

When contacted in February, Decker said he filed so many requests because “I’m pissed off.” He referred to an old incident involving alleged mistreatment by police, and said the city owes him money.

He expressed no concern for the public cost of responding to his requests.

“If it costs the government one penny, too damn bad,” he said.

For one of his last requests, Decker asked to view all receipts for the “purchase of all paper hand towels bought for and by the City of Tacoma for all departments of the City of Tacoma for the year 2014.”

While not referring to Decker specifically, Randy Lewis, Tacoma’s government relations manager, said the public records act needs to change to prevent harassing requests. He often travels to Olympia to lobby on Tacoma’s behalf.

“The intent of the law was not to allow people to harass local government,” Lewis said. “Particularly for small cities, this has become a real problem.”

Lewis said this year’s proposed bill to modify disclosure laws wasn’t the answer, but he believes it will return next year in another form. Like Rep. Nealey, he believes that small cities are the hardest-hit by voluminous requests. Larger cities and agencies have the staff to cope.

“I think the issue’s gonna get dealt with next year, and that’s the appropriate time,” Lewis said. “I think the way forward with some of this stuff is going to involve money, especially for small cities. If the Legislature really wants to encourage open data, they're gonna have to pay for it.”

CITIES ALREADY HAVE OPTIONS

When a disgruntled resident or two start filing requests, Lewis said, it can cripple the system. For now lobbyists can only cite anecdotes that sometimes do not hold up to scrutiny. But credible information could be on the way.

A Washington State Auditor’s Office study on government costs of complying with the act could be released in December 2016. Last year the office sent more than 2,300 surveys to school boards, cities, port districts and more. Lewis said the money for the study came from the last legislative session. He said the study is a victory for small governments that struggle to comply with requests.

In recent years, records requests have become more complex, said Kirkland City Clerk Kathi Anderson, who is the vice president of the Washington Association for Public Records Officers.

While she said large records requests in Kirkland do not delay the response to a smaller one, Kathi Anderson said she understands how smaller cities could struggle. For example, a small city might have one clerk who takes payments for utility bills, issues building permits and fields records requests.

“To fit in a voluminous records request (with their other duties) that can be a challenge,” Kathi Anderson said.

In Kirkland, requests are categorized based on five levels of complexity. Generally, the city’s policy requires responses in chronological order, but the categories can affect the timing of responses. The policy does not set an ironclad sequence of responses; instead, decisions are made case by case. Requests that require many people across departments to search for records might earn a category three or four. A request for a specific email might be placed in category two. Category one is for requests where swift response can impact public safety.

“When we get requests now for every record the city has, that’s a completely different animal,” Kathi Anderson said.

Kirkland processes complex requests in batches — a measure allowed in the current records act. Often a staffer calls the requester to see if he or she really wants all records. For instance, when Clemans asked to inspect “all of Kirkland’s public records,” the city called him.

“We used the Public Records Act to clarify what he meant and we proceeded from there,” Anderson said. “And of course, Mr. Clemans had priorities that he wished us to produce (records) in a specific order.”

Anderson said Clemans later dropped his requests.

Cities can also stop processing a request if the person who asked for them doesn’t pick up the first batch.

Kirkland’s approach also says disclosure may be delayed if it involves records held by employees whose primary duties don’t include responding to requests.

We really love it and we hope our customers do too.

Kirkland City Clerk Kathi Anderson on the city’s method for responding to records requests

But Bock said there’s a problem with Kirkland’s approach to prioritizing records requests based on their complexity, because it has not been tested in court or approved by the Legislature. The same is true, she said, of Attorney General Ferguson’s tactic of denying a request for “all records” because a specific record was not identified.

So far though, Kathi Anderson said her office has had no complaints and she can’t imagine abandoning the new system.